Chapter 4 Analysis of Constitutional Reform
Figure 4.1 Timeline and Breakdown of Constitutional Reform Reform Date
June 1 1947 Republic of China constitution promulgated
on mainland China
April 1948 National Assembly passes the Temporary
Provisions for the Suppression of the Communist Rebellion
April 22 1991 First extraordinary session of the National Assembly held to discuss the termination of the Temporary provisions
May 1st 1991 Temporary provisions terminated
1st round of Additional Articles 1) Elections for the Legislative Yuan and National Assembly
2) Authorization for the president to issue emergency decrees
3) Stipulate rights and obligations between both sides of the strait regulated by law May 27th 1992 2nd round of Additional
Articles
1) Election of National Assembly and State of the Nation Address
2) Direct Election of the President and Vice President
3) local self-governance, election of
provincial government and municipal mayors 4) Examination, Control, Judicial Yuan heads nominated by president
5) Focus on fundamental national policies 6) Formation of tribunals by Judicial Yuan to dissolve political parties
July 4th 1994 4th extraordinary session of National Assembly
August 1st 3rd round of Additional Articles 1) Speaker/Deputy speaker of NA 2) Direct election of president and vice president, recall through NA and vote by the people
3) Office head removals by president must be confirmed by NA without the counter signature of primer
June-July 1997 4th round of Additional Articles
1) President of executive appointed by president without the consent of the legislature
2) 10 days after a vote of no confidence of the premier the president may dissolve the legislature
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3) Power to impeach rests in legislature and can only happen for high treason or rebellion 4) Reconsider bill’s difficult for the executive to execute
5) Legislature 225 members 6) Composition of Grand Justices 7) Independence of Judicial Budget
8) Provincial elections suspended, governor and members chosen by president
9) economic assistance to Small/medium enterprises
10) termination of minimum amounts dedicated to science, culture, and education Source: “Republic of China Constitution.” Office of the President Republic of China (Taiwan), June 19 2017, http://english.president.gov.tw/Page/93.
Additional Article three consists of 10 paragraphs. The first paragraph deals with the direct election of the president. The decision had been made, President Lee and the DPP were able to secure votes through popular election as opposed to an electoral college type system which would have most likely seen a vote through the National Assembly.
A victor would be chosen by a simple majority or plurality vote. Most importantly the writers were sure to explicitly state the location of the election would happen in the area of, “free China.” After the subsequent legislative elections, it was clear the majority of people still supported the ROC and were not ready to even consider a new name, flag, or constitution no matter how attainment the DPP was. However, creating the
distinction of a free and unfree China was a message to the PRC that the government in Taipei was deviating from the, “One China” framework.106
As stipulated by Duverger one of the three criteria a political system must met in order to be considered semi-presidential is direct elections. Allowing for the direct vote of the president would give the office a mandate. Certainly, Lee Teng-hui was riding on the coattails of early reforms and felt he would not lose the election.
Paragraph 2 of additional article three states, “Presidential orders to appoint or remove from office the president of the Executive Yuan or personnel appointed with the confirmation of the Legislative Yuan in accordance with the Constitution, and to
dissolve the Legislative Yuan, shall not require the countersignature of the president of
106 Wong, 23.
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the Executive Yuan.” The new article negated Article 37 of the original constitution, which required legislative consent of the presidential nominees to office of premier. Lee Teng-Hui’s faction along with the DPP was in favor of this Additional Article, as it would strengthen the presidents influence over the Executive Yuan. This article also prevents the formation of cohabitation. In parliamentary systems, cohabitation exists when the president and majority in the legislature are from different parties. This can be mitigated with the appointment of a premier who can act as a bridge between the chief executive and lawmakers. Under the new article the president may choose a premier of his or her liking who may conflict instead of cooperate with the legislature.107
In the literature review and theory I mentioned the importance of both legislative and non-legislative powers. Paragraph 2 of additional article 3 falls under the category of a non-legislative power.
As mentioned in a previous passage one of the more important articles added falls within the third paragraph of Additional Article three. Previous under article 43 the president was allowed to issue emergency measures in the case of, “a natural calamity, an epidemic, or a national financial or economic crisis.” In the new article the wording is slightly changed to, “The president may, by resolution of the Executive Yuan Council, issue emergency decrees and take all necessary measures to avert imminent danger affecting the security of the State or of the people or to cope with any serious financial or economic crisis, the restrictions in Article 43 of the Constitution
notwithstanding.” Although the PRC made no recent threat against Taiwan, reformers were certainly references their neighbor from the across the strait when they wrote,
“imminent danger.” The change in wording was made to broaden the situation in which the president would be able to utilize his emergency powers. Surprisingly even after the third Taiwan Straits crisis, president Lee did not initiate any emergency powers.108
Paragraph 4 of Additional Article three states that in a time of emergency the
president is allowed to form a national security council and subsequent national security bureau. Organizational structure would be stipulated by relative laws. Following the chain of command the NSC would be chaired by the president and co-vice chaired by
107 ROC Constitution, Additional Article 2
108 ROC Constitution, Article 43
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the VP and Premier. The purpose of the NSC is, “to make recommendations for the president’s reference in decision-making on matters critical to national interests.”
Critical to the structuring of a semi-presidential system is the relationship between the president, executive and legislature. Paragraph 5 of Additional Article 3 stipulates,
“The president may, within ten days following passage by the Legislative Yuan of a no-confidence vote against the president of the Executive Yuan, declare the dissolution of the Legislative Yuan after consulting with its president. However, the president shall not dissolve the Legislative Yuan while martial law or an emergency decree is in effect.
Following the dissolution of the Legislative Yuan, an election for legislators shall be held within 60 days.” This section grants the president power over the legislature. By creating a mechanism to dissolve the legislature following a vote of no confidence the legislatures power to check the executive branch is seriously compromised. Legislators would have to be confident in their support to follow through with a vote, which could end up creating instability. Furthermore, following the announcement of snap elections lawmakers would have to focus their attention on fundraising and campgeining
effectively taking them away from being fully focused on policy making.109
Prior to the direct presidential elections, the constitution stipulated that a president would serve for a six year term. Under the new Additional Article paragraph 6 the presidential term was reduced to four years, with a maximum two term limit. This was a compromise, Lee was willing make. The constitutional term limit was in keeping with most modern democracies. Like many authoritarian regimes, during the marital law period presidential term limits were not set and thus the Chiang’s were able to remain in power without protest. Presidential term limits are a fundamental stable of democracies around the world, by shortening terms and creating a limit, reformers on Taiwan wanted to assure a dictator could not rise again.
The next round of reforms in 1997, saw an even greater level of competition between the two oddment parties. Following elections, the KMT lost its overwhelming majority in the legislature. Effective governance in a more competitive political
environment was of the upmost importance. Reformers focused on the triangular relationship between the president, premier and legislature. Under Article 55 of the original constitution, the premier was appointed by the president with the consent of the
109 ROC Constitution, Additional Article 3
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legislature. Article 3 of the Additional Article stipulated, “The president of the Executive Yuan shall be appointed by the president. Should the president of the
Executive Yuan resign or the office become vacant, the vice president of the Executive Yuan shall temporarily act as the president of the Executive Yuan pending a new appointment by the president. The provisions of Article 55 of the Constitution shall cease to apply.” Article three paragraph one gave sole responsibility in choosing the premier to the president. This created a duel executive system, if the policies of the legislature were not carried out properly the premier would be subject to legislature not the president. The premier acts as a go two between the two branches and a buffer for the president.110
Article 3 of the Additional Article continues by stipulating how the Executive Yuan will be subject to the legislature. There are three sections, with each one outlining different ways in which the one branch might be responsible to the other. Under Section 1 the Primer must report the Legislature. Members of the Legislative Yuan also have the right to interpellated the Premier, Ministers and other organizations. Section two states if a bill is deemed to, “difficult to execute,” with the approval of the president the Premier may send it back to the Legislature for reconsideration. The LY then has 15 days to return the bill, if lawmakers cannot reach a resolution then the bill becomes invalid. If ½ of the lawmakers approve of the new resolution then the Premier must accept it.
Section 3 of Article 3 is arguably the most important as it states the power of the legislature to dissolve the legislature. 1/3 of the legislature must sign a vote of no-confidence in the premier. Within 48 hours an open ballot must be cast. If more than ½ of the legislators cast their vote against the premier, then he shall tenure his resignation.
The next line is not unique to Taiwan, but it undercuts the legislators ability and political will to dissolve the legislature. “At the same time may request that the president dissolve the Legislative Yuan. Should the no-confidence motion fail, the Legislative Yuan may not initiate another no-confidence motion against the same president of the Executive Yuan within one year.”111
110 ROC Constitution Article 55
111 ROC Constitution, Additional Article 3, Section 3
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Figure 4.2 Flow Chart of Additional ArticlesSource: “Republic of China Constitution.” Office of the President Republic of China (Taiwan), June 19 2017, http://english.president.gov.tw/Page/93.
DPP leaders realized their influence within Taiwan’s political system was growing.
They knew the previous reforms increased the probability of Lee Teng-hui being elected as president in 1996. However, moderates welcomed this as they believed Lee was the best possible alternative to their own candidate. Party members were optimistic that future elections could bring about victory. The most pressing issue for the DPP was that of Taiwan’s independence. The party had adopted the ultimate goal of independence in their charter but realized an outright declaration was not a possibility. Over time, independence was replaced by sovereignty. This stance was one in which reform minded KMT members could support. Additional Article 9 deals with the provincial government.
The article is broken down into seven sections. President Lee and his supporters argued the provincial government had to be streamlined.112 It had long been argued the